Easement by Prescription – Tacking Not Available in Absence of Privity

Riley v. Boles, [Ms. SC-2023-0237, Jan. 12, 2024] ___ So. 3d ____ (Ala. 2024). The Court (Parker, C.J.; Wise, Sellers, Stewart, and Cook, JJ., concur) reverses the Autauga Circuit Court’s order declaring an easement by prescription across John Riley’s property benefitting property owned by Kenneth Boles.

The Court first rejects Riley’s argument that the complaint failed to invoke the circuit court’s subject matter jurisdiction by failing to allege a justiciable controversy. The Court reiterates that “[t]he touchstone of whether a complaint alleges a justiciable controversy is whether it alleges a ‘controversy between parties whose legal interests are adverse.’ Gulf Beach Hotel, Inc. v. State ex rel. Whetstone, 935 So. 2d 1177, 1183 (Ala. 2006).” Ms. **7-8. The Court next explains:

“To establish an easement by prescription, the claimant must use the premises over which the easement is claimed for a period of twenty years or more, adversely to the owner of the premises, under claim of right, exclusive, continuous, and uninterrupted, with actual or presumptive knowledge of the owner. The presumption is that the use is permissive, and the claimant has the burden of proving that the use was adverse to the owner. Bull v. Salsman, 435 So. 2d 27, 29 (Ala. 1983).”

Ms. * 9.

The Court reverses because Boles failed to establish adverse use of the roadway for 20 years. “Neither party presented any evidence indicating that Riley had received notice regarding Edmondson’s [Boles’s alleged predecessor in title] use of the road before he received Edmondson’s 2016 letter proposing an agreement for the use of the road. Under Alabama law, the use of a roadway is presumed to be permissive unless shown otherwise. Cotton, 293 Ala. at 214-15, 301 So. 2d at 169-70. Therefore, before 2016, Edmondson’s use of the road was presumptively permissive.” Ms. **9-10.

The Court further explains that “[u]nder Alabama law, when a claimant seeking a private prescriptive easement has not used the easement himself for the entire statutorily prescribed prescriptive period, he may ‘tack’ his use onto periods of use by his predecessors in title. See Apley v. Tagert, 584 So. 2d 816, 818 (Ala. 1991). It is undisputed that Edmondson has not held any interest in the Boles property except during a brief period between 2016 and 2018, when he leased the Boles property. At all other times, he was merely a licensee.” Ms. *11. Consequently, Edmondson and Boles were not in privity such that Boles could not “tack” any adverse use of the roadway by Edmondson on to Boles’s adverse use of the roadway. Ms. *12.

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